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T.C. Summary Opinion 2007-172 UNITED STATES TAX COURT BOBBY LORN AND LIBBY C. CLABORN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 16693-05S. Filed October 3, 2007. Bobby Lorn and Libby C. Claborn, pro sese. John R. Bampfield, for respondent. WHERRY, Judge: This case was heard pursuant to section 7463of the Internal Revenue Code in effect when the petition wasfiled.1 Pursuant to section 7463(b), the decision to be entered 1 All subsequent section references are to the InternalRevenue Code of 1986, as amended and in effect for the taxableyear at issue. All Rule references are to the Tax Court Rules ofPractice and Procedure.

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- 2 -is not reviewable by any other court, and this opinion shall notbe treated as precedent for any other case. Respondent determined a deficiency in petitioner’s Federalincome tax for the 2003 taxable year in the amount of $3,592.The issues now before the Court are: (1) Whether petitioners areentitled to an itemized deduction of $2,096 for charitablecontributions of cash to First Presbyterian Church inChattanooga, Tennessee (church);2 (2) whether petitioners areentitled to an itemized deduction in excess of the $25 respondentallowed for their charitable contribution of property to theSalvation Army; and (3) whether petitioners are entitled to amiscellaneous itemized deduction of $21,729 for unreimbursedemployee expenses. 2 Respondent concedes that petitioners are allowed a $500deduction for 20 separate $25 contributions made to their churchin 2003 by check through the use of tithing envelopes. On their2003 Federal income tax return, petitioners claimed only a $2,000deduction for contributions to their church in cash rather thanby check. At trial, petitioners claimed such cash contributionsin the amount of $2,096, as set forth on a self-prepared itemizedschedule they prepared for trial. That schedule showed cashcontributions by week to “Lee Anderson’s Class”; “Children’sClass”; and “Church Offering”. The totals for 2003 were $84, $85(but petitioners claimed $87 as the result of an addition error),and $1,925, respectively. The weekly donations to each of thetwo “classes” were $2 with one exception, a $1 donation to the“Children’s Class” for the week of June 22. Respondent alsoconcedes that petitioners are entitled to a $250 deduction forcontributions made to the Lookout Mountain Education Fund in2003. That deduction was not allowed in the statutory notice ofdeficiency that was issued by respondent in this case.

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- 3 - Background Some of the facts have been stipulated, and the stipulatedfacts and accompanying exhibits are hereby incorporated byreference into our findings. Petitioners, husband and wife,resided in Chattanooga, Tennessee, when they filed their petitionin this case. Petitioner Bobby Lorn Claborn (Mr. Claborn) is a mechanicalengineer. Mr. Claborn worked for ResourceTek LLC from January 1to February 16, 2003, was unemployed for the following 8 months,and then worked for RWE NUKEM Corporation from October 20, 2003,through the end of that year. While employed by RWE NUKEM Corporation, Mr. Claborn droveto work each work day. The distance from his house inChattanooga, Tennessee, to the offices of RWE NUKEM Corporationin Oak Ridge, Tennessee, is approximately 224 miles round trip. Petitioners electronically filed a timely joint Form 1040,U.S. Individual Income Tax Return, for the 2003 taxable year.Petitioners chose to itemize their deductions and attached aSchedule A, Itemized Deductions. The Schedule A reflected totalitemized deductions of $34,100, which included a charitablecontribution deduction of $2,775 and an “other miscellaneous”deduction of $21,729.3 3 This represents the amount by which petitioners’miscellaneous deductions exceeded 2 percent of their adjusted (continued...)

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- 4 - On July 8, 2005, respondent issued the aforementioned noticeof deficiency. Petitioners then filed a timely petition withthis Court. A trial was held on March 5, 2007, in Knoxville,Tennessee. DiscussionI. Burden of Proof As a general rule, the Commissioner’s determination of ataxpayer’s liability is presumed correct, and the taxpayer bearsthe burden of proving that the determination is improper. SeeRule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).However, pursuant to section 7491(a), the burden of proof onfactual issues that affect the taxpayer’s tax liability may beshifted to the Commissioner where the “taxpayer introducescredible evidence with respect to * * * such issue”. In theinstant case, petitioners have neither asserted nor demonstratedthat they satisfied the requirements of section 7491(a),including the requirement to maintain required records, to shiftthe burden of proof onto respondent with respect to any factualissue. Consequently, the burden of proof remains on petitioners.II. General Deduction Rules Deductions are a matter of legislative grace, and thetaxpayer must maintain adequate records to substantiate the 3 (...continued)gross income. See sec. 67(a). The amount of petitioners’ totalreported miscellaneous deductions was $23,269.

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- 5 -amounts of any deductions or credits claimed. Sec. 6001; INDOPCOInc. v. Commissioner, 503 U.S. 79, 84 (1992); sec. 1.6001-1(a),Income Tax Regs. Generally, the Court may allow for the deduction of aclaimed expense (other than those subjected to the strictsubstantiation requirements of section 274) even where thetaxpayer is unable to fully substantiate it, provided the Courtpossesses an evidentiary basis for doing so. Cohan v.Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930); Vanicek v.Commissioner, 85 T.C. 731, 742-743 (1985); sec. 1.274-5T(a),Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov. 6, 1985).In these instances, the Court is permitted to approximate theallowable expense, bearing heavily against the taxpayer whoseinexactitude is of his or her own making. Cohan v. Commissioner,supra at 544.III. Charitable Contributions Section 170(a) allows for the deduction of charitablecontributions made to or for the use of an organization describedin section 170(c) and verified as required by the statute andcorresponding regulations. Section 170(f)(8) generally requiresa taxpayer claiming a charitable contribution deduction greaterthan $250 to substantiate the deduction by obtaining acontemporaneous written acknowledgment of the contribution fromthe charitable organization. Under section 170(f)(8)(B)(i), that

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- 6 -written acknowledgment must include “The amount of cash and adescription (but not value) of any property other than cashcontributed.” In addition, the written acknowledgment muststate, among other things, “Whether the donee organizationprovided any goods or services in consideration, in whole or inpart” for the contribution. Sec. 170(f)(8)(B)(ii). Finally, ataxpayer deducting a charitable contribution, regardless of itsamount, is generally required to maintain for each contribution acanceled check, a receipt from the donee charitable organizationshowing the name of the organization and the date and amount ofthe contribution, or other reliable written records showing thename of the donee and the date and amount of the contribution.Sec. 1.170A-13(a)(1), Income Tax Regs. In support of the claimed $2,096 in cash donations to theirchurch, petitioners have offered the aforementioned self-preparedlist of the contributions and the dates on which they were made,along with letters from elders of their church stating thatpetitioners attend church regularly and participate in churchprograms.4 Notwithstanding the Court’s discretionary authority pursuantto Cohan, a taxpayer must provide the Court with some basis upon 4 Mr. Claborn claims to have made these donations in 44separate “Church Offering” installments ranging from $25 to $60,42 separate $2 donations for “Lee Anderson’s Class,” and 42separate $2 donations and a single $1 donation for “Children’sClass.”

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- 7 -which an estimate of the amount of a claimed deduction may bemade. Vanicek v. Commissioner, supra. Without such a basis, anyallowance would amount to “unguided largesse.” Williams v.United States, 245 F.2d 559, 560 (5th Cir. 1957). Theaforementioned documents provided by petitioners in support ofMr. Claborn’s cash donations, which we believe were not preparedcontemporaneously with those donations, are not reliable enoughto support all of the claimed cash donations. Specifically, wedo not find the documents reliable enough to support the claimed$1,925 in “Church Offering” cash donations, especially in lightof the materiality of the amount claimed and the 20 separate $25contributions that petitioners made to their church in 2003 bycheck through the use of tithing envelopes. In order to satisfythe regulatory substantiation requirements, checks, receipts, orother reliable contemporaneous records were required. See sec.1.170A-13(a)(1), Income Tax Regs. As a result, we do notexercise our discretionary authority pursuant to Cohan withrespect to those cash donations. However, because petitionerswere regular churchgoers with two children, we do find theevidence reliable enough to support the claimed 42 separate $2donations for “Lee Anderson’s Class,” and the 42 separate $2donations and the single $1 donation for “Children’s Class.” Wetherefore conclude that petitioners are entitled to deduct $169of cash charitable contributions.

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- 8 - Turning to the value of petitioners’ donation to theSalvation Army, we note that petitioners have provided a receiptfrom the Salvation Army, dated November 21, 2003, reflecting thedonation of three boxes containing clothing and toys. However,by failing to state whether the Salvation Army provided any goodsor services in exchange for a contribution that petitioners claimexceeded $250, the receipt fails to satisfy section170(f)(8)(B)(ii). Although we believe that it is unlikely thatpetitioners received any goods or services from the SalvationArmy in exchange for their donation, we are required to apply thestatute and cannot escape its clear command. Weyts v.Commissioner, T.C. Memo. 2003-68 (“To allow petitioner thecharitable contribution deduction in the circumstances here wouldcontravene the specific statutory language and purpose ofrecordkeeping for contributions in excess of $250.”); see alsoKendrix v. Commissioner, T.C. Memo. 2006-9. Accordingly,petitioners have not demonstrated entitlement to a deduction inexcess of the $25 that respondent has allowed for theircharitable contribution of property to the Salvation Army.IV. Unreimbursed Employee Business Expenses Section 162(a) authorizes a deduction for “all the ordinaryand necessary expenses paid or incurred during the taxable yearin carrying on any trade or business”. However, taxpayers aregenerally barred from deducting the daily cost of commuting to

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- 9 -and from work, as a commuting expense is considered to bepersonal and nondeductible. Commissioner v. Flowers, 326 U.S.465, 473-474 (1946); sec. 1.162-2(e), Income Tax Regs. Anexception to the nondeductibility of commuting expenses involvessituations where the transportation is to and from a temporarywork location. See Rev. Rul. 90-23, 1990-1 C.B. 28, as amplifiedand clarified by Rev. Rul. 94-47, 1994-2 C.B. 18, as modified andsuperseded by Rev. Rul. 99-7, 1999-1 C.B. 361. Also, certain business expenses described in section 274(d)are subject to strict substantiation rules that supersede theCohan doctrine. Sanford v. Commissioner, 50 T.C. 823, 827-828(1968), affd. per curiam 412 F.2d 201 (2d Cir. 1969); sec.1.274-5T(a), Temporary Income Tax Regs., 50 Fed. Reg. 46014 (Nov.6, 1985). Section 274(d) applies to: (1) Any traveling expense,including meals and lodging away from home; (2) entertainment,amusement, and recreational expenses; or (3) the use of “listedproperty”, as defined in section 280F(d), including passengerautomobiles. To deduct such expenses, the taxpayer mustsubstantiate by adequate records or sufficient evidence tocorroborate the taxpayer’s own testimony: (1) The amount of theexpenditure or use, which includes mileage in the case ofautomobiles; (2) the time and place of the travel, entertainment,or use; (3) its business purpose; and in the case of

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- 10 -entertainment, (4) the business relationship to the taxpayer ofeach expenditure or use. Sec. 274(d)(4). A. Expenses Relating to Mr. Claborn’s Employment WithResourceTek LLC Mr. Claborn has submitted hotel receipts and a mileage login support of claimed deductions relating to his temporaryemployment with ResourceTek LLC.5 However, even setting asidethe substantiation requirements, the evidence of record reflectsthat Mr. Claborn was reimbursed for the expenses that he incurredduring his brief employment with ResourceTek LLC for which heclaims a deduction. In that regard, in response to a requestfrom ResourceTek LLC for a canceled check reflecting that he hadreceived a per diem allowance, Mr. Claborn was provided adocument reflecting that he was paid an untaxed per diemallowance that amounted to $400 weekly.6 Although it is unclearexactly how much of a deduction petitioners think they areentitled to for expenses relating to Mr. Claborn’s temporaryemployment with ResourceTek LLC, petitioners have failed todemonstrate expenses exceeding Mr. Claborn’s $400 weekly per diemallowance. Accordingly, petitioners are denied a deduction for 5 Respondent does not contest the temporary nature of Mr.Claborn’s employment with either ResourceTek LLC or RWE NUKEMCorporation. 6 In addition, Mr. Claborn’s employment agreement withResourceTek LLC provided for the possibility of a per diemallowance.

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- 11 -expenses incurred in connection with Mr. Claborn’s employmentwith ResourceTek LLC.7 B. Expenses Relating to Mr. Claborn’s Employment with RWENUKEM Corporation Petitioners claim a deduction for automobile expensesincurred by Mr. Claborn while he was temporarily employed by RWENukem Corporation from October 20, 2003, to the end of that year.As mentioned above, passenger automobiles are listed propertyunder section 280F subject to the strict substantiationrequirements of section 274(d). At trial, Mr. Claborn presented a pocket calendar in whichhe made notations of the mileage that he drove to and from work 7 On Mar. 8, 2007, petitioners filed a motion to reopen therecord and submitted a Form W-2, Wage and Tax Statement, whichthey assert reflects that Mr. Claborn was not paid a per diemallowance while employed by ResourceTek LLC. Although, in thespirit of sec. 7463(a) and Rule 174(b), we will grant thatmotion, as explained below, that document does not supportpetitioners’ argument. The Form W-2 submitted together with themotion to reopen reflects that Mr. Claborn received $16,922.50 inwages, tips, and other compensation for his work at ResourceTek,LLC, in 2003. The document, a payroll ledger prepared byTailored Business, which acted as the payroll and bookkeepingagent for ResourceTek, LLC, indicates that, while working atResourceTek, LLC, Mr. Claborn was paid an untaxed per diemallowance that amounted to $400 weekly. The payroll ledger alsoreflects that Mr. Claborn was paid a total of $19,942.50 for hiswork at ResourceTek, LLC, in 2003. Thus, it appears that Mr.Claborn received $3,020 in the form of an untaxed per diemallowance. Because Mr. Claborn worked at ResourceTek, LLC, for 7weeks in 2003 and was paid a $400 weekly allowance, it is unclearwhy he was paid $3,020 in untaxed per diem benefits rather than$2,800. In any event, this discrepancy is to Mr. Claborn’sbenefit, as none of the untaxed per diem allowance was reportedon the Form W-2 or taxed by respondent.

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- 12 -each day while he was temporarily employed by RWE NukemCorporation. Because Mr. Claborn presented this evidence for thefirst time at trial, we do not believe that he maintainedcontemporaneous records of his automobile expenses. And,although a contemporaneous log is not required in order tosubstantiate the deduction, corroborative evidence to support ataxpayer’s reconstruction of the elements of the expenditure oruse must have “a high degree of probative value to elevate suchstatement” to the level of credibility of a contemporaneousrecord. Sec. 1.274-5T(c)(1), Temporary Income Tax Regs., 50 Fed.Reg. 46014 (Nov. 6, 1985). We do not doubt that Mr. Claborn, at some point, attemptedto accurately record his daily mileage. Nevertheless, the pocketcalendar that he provided at trial does not possess asufficiently high degree of probative value to render it credibleas a contemporaneous record. For example, Mr. Claborn’s calendarsimply contains the number of miles that Mr. Claborn drove eachday, presumably to work. It does not establish the portion ofhis daily mileage attributable to personal transportation. Nordoes it explain variances in the number of miles recorded. Inthe end, the calendar provided at trial by Mr. Claborn is simplynot definite and reliable enough to support an automobile expensededuction for 2003.

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- 13 - C. Job-Search Expenses Job-search expenses are deductible under section 162(a) tothe extent they are incurred in searching for new employment inthe employee’s same trade or business. See Primuth v.Commissioner, 54 T.C. 374, 378-379 (1970); see also Murata v.Commissioner, T.C. Memo. 1996-321. Although respondent asserts that petitioners seek a $5,000deduction for job-search expenses, petitioners provided noargument as to that matter at trial, and there is no evidence ofrecord to support such a deduction. Consequently, to the extentthat petitioners claim such a deduction, they have notdemonstrated entitlement to it. The Court has considered all of petitioners’ contentions,arguments, requests, and statements. To the extent not discussedherein, we conclude that they are meritless, moot, or irrelevant. To reflect the foregoing, Decision will be entered under Rule 155.